ORAL JUDGMENT

1. Heard Mr. V.M. Pancholi, learned advocate for the applicant. Mr. Pancholi states that the matter is duly covered by the Hon'ble Supreme Court judgment in the case of Mrs. Aparna A. Shah Vs. M/s. Sheth Developers Pvt. Ltd. & Anr., reported in (2013) 8 SCC 71. This Court (Coram: S.R. Brahmbhatt, J.) vide order dated 12.7.2013 admitted the matter and granted interim relief staying further proceedings of the complaint in question.

2. Though served, no one appeared for respondent No.2 - first informant and therefore, this Court vide order dated 19.11.2013 issued fresh notice of Rule which is also served. Today, when the matter is called out, respondent No.2 has neither appeared, nor is represented by any lawyer and hence, Mr. V.M. Pancholi, learned advocate for the applicant and Mr. Alkesh N. Shah, learned Additional Public Prosecutor for the respondent No.1 - State Government have been heard by this Court.

3. Mr. Pancholi, learned advocate for the applicant has taken this Court through the complaint, order passed by the Magistrate as well as the documents which were placed before the Magistrate by the complainant at Annexure-A Colly.

4. It appears from the record that two cheques were issued by Mr. N.H. Patel, the husband of the applicant – (i) cheque No.373170 dated 2.5.2011 of Kalupur Commercial Bank, Isanpur Branch worth Rs.49,000/-, and (ii) cheque No.373176 dated 1.10.2011 of Kalupur Commercial Bank, Isanpur Branch worth Rs.2,000/-, drawn in favour of original complainant. It further appears from the copy of the pass books that the cheques were drawn from account No.1910107694, which is not in the name of the applicant, but is in joint name of Heer Nishit Patel, son of applicant as well as husband of the applicant - Nishit Himanshubhai Patel. Mr. Pancholi, relying upon the judgment of the Hon'ble Apex Court in the case of Aparna A. Shah (supra), contended that as the applicant is not a drawer of two cheques in question, the ingredients of Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as “the Act”) are not attracted at all and therefore, there is no further question of any demand in favour of the complainant under Section 138 of the Negotiable Instruments Act, 1881. It is, therefore, submitted that on the aforesaid sole ground, the impugned complaint against the present applicant amounts to abuse of process of law and Court and the ingredients of Section 138 of the Negotiable Instruments Act, 1881 are not made out and admittedly, the applicant is not the drawer of the cheques and therefore, the present complaint is required to be quashed as prayed for and in order to secure the ends of justice, inherent powers conferred under Section 482 of the Code may be exercised.

5. Even at the cost of repetition, even though twice, attempts were made to serve the notice of Rule, the original complainant has preferred not to remain present before the Court.

6. Mr. Alkesh N. Shah, learned Additional Public Prosecutor for respondent No.1 - State Government has supported the case of the complainant and the order passed by the Magistrate dated 31.7.2012.

7. On perusal of the complaint, it appears that the complaint is lodged by respondent No.2 against the applicant under Sections 138 and 141 of the Act. As can be seen from Para 3 and 4, it appears that the case of the complainant is that two cheques in question were given to respondent No.2 in view of the debt relating to the purchase of commodity. It further appears that notice came to be issued by the complainant in compliance with the provisions of Section 138 of the Act on receipt of the memo from the banker of the complainant intimating that the cheques in question have been returned with an endorsement “Insufficient Funds”. It appears from the record that the cheques were dated 2.5.2011 and 1.10.2011 and the same were deposited by the complainant with his banker on 17.10.2011. The said cheques were returned with the aforesaid endorsement on 18.